Pete Drown, Inc. - Interim Decision, January 27, 1994

Interim Decision, January 27, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Applications of PETE DROWN, INC. for permits to construct and operate
a solid waste incinerator in the Town of Ellenburg pursuant to
the Environmental Conservation Law Articles 19 (Air Pollution Control) and 27 (Solid Waste)

Project No. 5-0936-00019/1 through 4

INTERIM DECISION

January 27, 1994

Interim Decision

This Interim Decision is in relation to appeals filed by the Town of Ellenburg (the "Town") and Environmentally Concerned Citizens of Ellenburg ("ECCOE"), collectively referred to as "the Intervenors," to the September 1, 1993 Ruling on Issues and Party Status (the "Rulings") of Administrative Law Judge ("ALJ") Frank Serbent in the captioned matter. ALJ Serbent ruled that there were no issues that required adjudication.

Legal and Policy Questions

There are a number of legal and policy questions, each of which affect the analysis of several issues that are under appeal. It is more efficient to address these issues at the outset to establish general principles that will guide the resolution of the appeals.

Status of the Air Guidance Documents

In several parts of the Rulings, ALJ Serbent dismissed criticisms by the Intervenors concerning the Applicant's compliance with certain guidance documents that have been developed by the Department. He reasoned that, since these guidance documents did not have the force and effect of law, the Applicant could not be required to ensure compliance with them. Hence, inconsistencies between these documents and the Applicant's proposal could not serve as a basis to modify or deny the permit.

Many of the standards established in the Environmental Conservation Law ("ECL") and the rules promulgated thereunder may be satisfied in a number of ways, all of which are legally sufficient. In such cases, the Department has discretion to implement the standard in different ways. In order to implement the standard in a rational and consistent way, the Department frequently adopts guidance documents. These documents assist Department Staff in exercising the discretion afforded by the law and they provide notice to the regulated community and the general public about how that discretion is likely to be exercised.

While statutes and regulations provide fixed standards against which a project is measured, guidance is flexible and is applied on a case-by-case basis. Therefore, the provisions of any guidance that the Department develops can be challenged by parties to a hearing. For the most part, however, that was not done here. Although the ALJ rejected the use of the guidance documents, he did not articulate the alternative basis upon which the Applicant's submittals should be judged. Therefore, he should have accepted the use of the guidance documents as a rational and consistent approach for the implementation of the air regulations and considered issues on that basis.

Compliance with Emission Limits

The ALJ ruled that no issue could be raised with respect to the Applicant's ability to meet any of the emission limits in the draft permit; only the adequacy of the limits themselves could be challenged. He reasoned that if the Applicant could not meet those limits then the facility would not be allowed to operate. In essence, he held that in judging whether issues required adjudication, compliance with permit conditions would be presumed and that there could be no inquiry into the feasibility of achieving compliance with the conditions. Since he found that compliance with the permit conditions where adequate to assure consistency with all regulatory requirements, he ruled that no adjudicatory issues existed.

The ALJ's analysis regarding the adequacy of the permit conditions did not take into full account the provisions of draft permit condition IV.F. Those provisions allow for the possibility of issuing an operating certificate even if the Applicant is unable to achieve the emission limits currently set forth in the draft permit. As pointed out in the Town's appeal, this could result in an improper avoidance of the public review process.

While the Applicant may always request a modification of its emission limits pursuant to procedures established under the Uniform Procedures Act (ECL Article 70), the decisions that are made on this application should not anticipate any such changes. If changes are proposed in the future, it should be clear that no revision in the emission limits will be permitted absent a reopening of the applicable public review process. Moreover, any changes must demonstrate compliance with all substantive laws and regulations applicable to the setting of emission limits. Draft permit condition IV.F. should be revised to remove any language inconsistent with these principles.

For purposes of the hearing, the only outstanding question is whether and to what extent the Department should require a demonstration that the emission limits in the draft permit can be met. If no such demonstration is required during the application review process, the full risk of inadequate performance of the pollution control equipment would be on the Applicant.

The Department has traditionally used the permit process as a vehicle to make some judgment regarding the feasibility of an applicant's proposal. The approach benefits both the public and applicants.

In determining the extent to which the Department will insist on a demonstration of feasibility, one must recognize that it is difficult to predict a project's future compliance with emission limits with certainty. The start-up test data, probably the best evidence on this question, will be unavailable during the review process. Therefore, the Department requires a showing based on a reasonable degree of engineering and technical certainty that the operation, as conditioned, is likely to be able to achieve the emission limits. This is the standard that will be applied below.

Health Risk Assessments ("HRAs")

The Intervenors have proposed a number of issues concerning the manner is which the health risk assessment was performed. They pose common questions that are discussed below.

To warrant adjudication, a proposed issue must be shown to be both substantive and significant [6 NYCRR 624.6(c)]. Substantive means that the issue is based on an offer of proof which is sufficiently sound that reasonable minds would make further inquiry (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988). Significant means that the issue has the potential to affect the permitting decision (In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990).

When judging whether criticisms raised by the intervenors are substantive, it must be kept in mind that there is no standard methodology for performing HRAs and that HRA is still a developing area of study. Where there are competing methods for performing HRA, it is rare that one can be established as correct to the exclusion of the others. Therefore, the fact that the HRA has been reviewed and found acceptable by the New York State Department of Health, one of the foremost experts in the field of environmental health and health risk assessment, is extremely important in judging whether a proposed issue concerning the HRA's adequacy of is substantive.

The significance of the issues the Intervenors seek to raise is also brought into question by a number of factors. First, the level of risk that is estimated in the HRA represents the maximum possible risk posed and many assumptions that are used have an extremely low probability of occurring. It is also important to bear in mind that the manner in which pollutants cause adverse health effects is not well understood. Given the current state of knowledge, HRAs are not capable of yielding results that are better than very gross approximations of risk.

One of the principal purposes of the adjudicatory hearing is to provide intervening parties the opportunity to raise issues concerning a project's compliance with the law. However, only those issues that have the potential to affect the decision-making process warrant adjudication. This principle is reflected in the Department's administrative process through the use of the substantive and significant standard for judging the worthiness of issues proposed by intervenors. I have reviewed the criticisms offered by the Intervenors of the HRA in light of the factors discussed above. I find that none of the proposed issues relating to the HRA have the potential to change the outcome of this case.

Town's Status as an Involved Agency under SEQRA

The Town has asserted that, as an involved agency, it should have all of its proposed issues that arise under the State Environmental Quality Review Act ("SEQRA") adjudicated in the interests of efficiency since it will ultimately need to judge the adequacy of the environmental impact statement("EIS"). The lead agency has the responsibility to prepare an EIS which conforms to the requirements of law and regulations. Whether it completes the EIS through a legislative process or an adjudicatory process or some combination of the two is a function of the laws and regulations that govern its procedures. Under the regulations that govern the Department's actions as lead agency, SEQRA questions that rise to the level of substantive and significant issues are resolved through the adjudicatory process and all others are resolved through the legislative process.

Particular Issues Appealed

The following resolves the appeal of individual issues in light of the discussion of principles above. The numbers that the parties associated with the issues has been maintained, but the issues have been regrouped in order to address common questions together.

Town's Appeal

The Applicant's projected level of dioxin emission is too low.

The Applicant's projected level of mercury emission is too low.

As discussed above, the Department need only require a showing that the operation, as conditioned, is reasonably likely to achieve the emission limits which are established in the draft permit. Such a showing was made in this case.

While the performance ability of the control equipment is in dispute, the Town overlooks other permit conditions that are designed to ensure that emission limits will be met. The draft permit contemplates the variation of the charging rate and the hours of operation for the facility in order to meet short and long-term limits. Also, authority to operate commercially will not be given until the start-up test data show that the emission limits can be met with or without modification in these parameters.

The facility cannot meet the "one in one million" cancer risk level.

The Town has argued that a "one in a million" health risk assessment standard should be used because the proposed control equipment does not represent the best available control technology ("BACT"). The Town cites Air Guide-1 which seeks such a demonstration where BACT is not employed.

However, the proposed facility cannot be permitted unless there is an adequate demonstration that the pollution control equipment constitutes BACT [ECL 19-0306(6)]. The Staff maintains that the Applicant can satisfy the BACT requirement by showing compliance with the standards of 6 NYCRR Subpart 219-3. This is not necessarily the case. BACT for a given facility type is not fixed but must be determined on a case-by-case basis [6 NYCRR 200.1(h)]. While the standards in the Subpart were BACT when they were promulgated, this may not be true some five years later.

The Town has made a sufficient offer of proof that the use of the activated carbon should be considered BACT. It has made a substantive showing which creates an issue as to whether the pollution control equipment needs to be supplemented by the use of activated carbon in order to constitute BACT. This issue is remanded for hearing.

The Applicant has failed to completely assess maximum off-site impacts of dioxin in the HRA.

The Town's request for adjudication of issue #4 has two bases. The first relates to the inability of the applicant to achieve the emission limit for dioxin set by the draft permit and used by the Applicant in the HRA. As stated above, there is an adequate demonstration that the project is reasonably likely to achieve the emission limits which are established in the draft permit.

The other basis for the Town's position for issue #4 and the basis for its position for issue #5 relates to the methodology used in the HRA. For the reasons stated above in the discussion concerning HRAs, I find that the Town's offers of proof do not meet the substantive and significant test.

The air quality analysis did not use a dispersion model representative of the wind patterns at the site.

The Applicant failed to use data representative of the region's air quality.

Both of these proposed issues relate to the adequacy of the air dispersion analysis performed by the Applicant. As discussed above, ALJ Serbent erred by not using the Department's guidance documents to consider the adequacy of the impact analysis which is required by 6 NYCRR 219-3.10(b). It was proper for the Town to seek to raise issues with respect to the analysis' consistency with these documents.

However, even though the Town's offers of proof relate to legitimate areas of inquiry, it is still necessary to find those offers substantive in order that an adjudicatory issue be raised. I find that the Town's submittals are insufficiently substantive to raise an issue in light the replies of the Applicant and the Staff. Although the Town disagreed with the Applicant's analysis of wind patterns, the record shows that if the Applicant's use of Plattsburg data is not representative, it is more conservative (i.e., would tend to overstate impacts) than the use of data from Ellenburg Depot. It also failed to provide any substantial offer of proof to support its other criticisms of the methodology used in the air impact analysis or its claim that there are data that better represent the project region's air quality.

The draft EIS does not reasonably assess the alternatives for treating medical waste.

The Town maintains that the draft EIS does not fairly assess the alternatives to the project and contains incorrect financial information about the proposed project and its alternatives.

The Applicant has presented information on a reasonable range of alternatives to the present action at a level of detail sufficient to permit a comparative assessment of the alternatives discussed [see 6 NYCRR 617.14(f)(5)]. The only filing from either of the Intervenors that substantively disputes that information is the Town's submittal on comparative project cost. However, it is not the objective of SEQRA to select the least costly project. SEQRA review is a vehicle to address environmental impacts. Consideration of adverse economic impacts that are unrelated to the environmental impacts is not within its purview (In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992). For this reason, no adjudicable issue is raised.

The Draft permits fail to include measures to address by-pass events.

By-pass events are both infrequent and short-lived. The Town's submittals fail to provide an adequate basis for considering any further regulation of them.

ECCOE's Appeal

With respect to the following issues ECCOE seeks to raise, the rationale in the Rulings is adopted by this Interim Decision: Issue #3 - Project effects on drinking water; Issue #4 - Current health of the community; Issue #8 - Lands and forests restrictions; Issue #9 - Synergistic effect of toxics; Issue #10a - Illegal transfer of permits; and Issue #16 - Use of incorrect particulate size.

Some of the issues proposed by ECCOE raise substantially similar questions as other issues raised by the Town. ECCOE Issue #2 - Analysis of alternatives is addressed in the discussion of Town Issue #7. ECCOE Issues #11 - Removal efficiency of pollution control equipment and #12 - Use of data from Quebec incinerator relate to the Applicant's ability to meet the emission limits. These issues are already addressed by the discussion relating to Town Issue #1. ECCOE Issue #19 - Use of on-site meteorological data relates to the same air dispersion modelling question that the Town sought to raise and is addressed by the discussion relating to Town Issue #6.

ECCOE Issues #13 - Bioavailability of dioxin, and #18 - Dioxin in dairy products relate to the HRA. The issues do not require adjudication for the reasons stated in the discussion above regarding HRAs generally.

The remaining issues appealed by ECCOE are addressed individually below.

1. No need demonstrated for the project.

Pursuant to SEQRA, a statement concerning the need for a proposed project is required in an EIS. This requirement is informational and there is no explicit requirement in SEQRA that the need for a project be demonstrated. The Department has held that a demonstration of need under SEQRA is implied from an agency's duty to consider economic, social and other considerations when making findings pursuant to 6 NYCRR 617.14(f) (see In the Matter of Hydra-Co. Generations Systems, Inc., supra). It follows that any demonstration of need required by SEQRA is limited to situations where the adverse environmental impacts of an action have not been mitigated to the extent that the action could be approved without considering other factors. Put another way, the extent to which SEQRA requires a demonstration of need is proportional to the extent to which the project causes unmitigatible adverse environmental impacts.

In this case, after all outstanding issues are resolved, any remaining adverse environmental impacts of the project will be insignificant. In that limited context, ECCOE has not created any reasonable doubt about the adequacy of the Applicant's showing of need.

5. The facility would violate the prohibition contained in 6 NYCRR Part 360 against siting solid waste facilities over aquifers.

The regulation cited by ECCOE, 6 NYCRR 360-1.14(b) prohibits solid waste from being deposited in ground or surface waters. There is no credible evidence that this would happen as a result of the operation of the project. The site does not meet the criteria in 6 NYCRR 360-1.2(b)(137) for designation as a "sensitive environment." Nor is the site located over a primary or principal aquifer. No issue is raised.

6. Siting of the proposed project would violate the freshwater wetland regulations.

ECCOE has submitted no credible evidence which would show that the construction or operation of the project has the potential to substantially affect any regulated wetland. Since the project itself is not located within a regulated wetland or adjacent area, there is no basis to assert jurisdiction under Part 663.

7. Siting of the project violates 10 NYCRR 112.5 relating to the protection of water supplies.

ECCOE bases its assertion concerning this regulatory requirement on the assumption that the operation of the project has a reasonable potential to cause well contamination. As discussed in the Rulings, there has been no adequate offer of proof to support this assumption. Therefore, no issue is raised.

10. The Applicant has not analyzed the cumulative impact of radiation releases from the proposed project.

ECCOE asserts that, despite the prohibition in the draft permit, the Applicant will be unable to prevent radioactive wastes from being burned at the facility. Therefore, it argues that the Applicant needs to provide an assessment of the radioactive component of the medical waste stream and of the health impacts of burning such wastes.

The question is whether the conditions in the draft permit offer reasonable assurances that radioactive wastes will be excluded from processing at the facility. The possession of radioactive materials is an activity that requires licensing, either by the State or City Department of Health (in the case of hospital or research activities) or by the State Department of Labor (in the case of industrial activities). Those licensing schemes are intended to provide assurances for the safe and legal disposition of any radioactive material which remains after the substances have been used for their intended purpose. Thus the Department's environmental permits are only secondary regulatory controls. Under these circumstances, I find that the offers of proof do not adequately raise a doubt about the need for further assurances of compliance.

14. Deposition model understates sub-micron deposition.

ECCOE's submittals are insufficiently substantive to raise an issue concerning the air dispersion modelling in light of the replies of the Applicant and the Staff. The methodology used by the Applicant is the one that is generally accepted for computing deposition velocities. This method is not invalidated by isolated field tests which are conducted under unique sets of circumstances.

15. Application of the air dispersion model to a forest canopy invalidates the plume dispersion rates.

Contrary to ECCOE's assertion, the record demonstrates that the air dispersion model adequately takes into account the presence of forested areas in the project vicinity.

17. No available ash disposal site.

There is no issue because a substitute disposal site has been identified and the Applicant has signed a contract for disposal at that site.

Conclusion

This matter is remanded to ALJ Serbent to conduct a hearing on the single issue identified in this Interim Decision -- Whether the addition of activated carbon is needed in order that the pollution control equipment be BACT. In addition, draft permit condition IV.F. should be revised in accordance with the above direction.

It is clear that both the Town and ECCOE are capable of assisting in the development of the record on the one issue remanded for adjudication. Therefore, full party status is awarded to both of them.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 27th day of January, 1994.